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tv   Magna Carta Legal Heritage  CSPAN  June 27, 2015 9:10pm-10:01pm EDT

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-- that is saying well, babies are difficult but one wonders when it is actually awesome to have children. i believe it is that. -- lewill leave it at that. had a great weekend. goodbye folks. >> join us each saturday evening at 8:00 p.m. midnight eastern for lectures across the country on different topics and eras of american history. lectures and history are also available as podcasts. visit our website at or download them from itunes. coming up next, this up in court historical society -- supreme court historical society hosts brenda hale for a commemoration on the 800 anniversary of the magna carta.
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she talks about how the magna carta influenced the histories of the u.s. and u.k. to limits on executive power. this program is a few minutes. >> today's lecture will be on the magna carta. a document of great historical significance to the rule of law. the 800 anniversary of which will be two weeks from today. we are honored and privileged to have as our lecturer, the deputy president of the supreme court of the united kingdom, the right honorable baroness hale of richmond. let me describe that lady hale has herself a couple. she was the only member of the u.k. supreme court to be a woman she was the first and only woman in 1999 was the -- when she was
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appointed to the court of appeals. in 1994, she was the first high court judge to come from a background as an academic and a public servant rather than as a practicing banister, although called to the bar in 1969 and 89. when she practiced law briefly in manchester, she decided that the ratio one of six women in her class, she was the only member of that class, man or women, to get an exceptional distinction. she became an academic at manchester university, specializing in family law. wrote a series of books on family law, including casebooks on parental responsibility and mental health, and a book on women and of the law in 1984 has been described as a grantmaking analysis of the weight gender inequality was codified in british law. -- the way gender inequality.
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in 1984, she became the first woman appointed to the law committee and past the children zach of 1989, described as the single most important piece of legislation for the protection of minors in the united kingdom. -- children act of 1989. also the mental health act of 2005 prevented-- it protected mentally handicapped people from participating in situations. she had a distinguished career throughout her life. we could have a lecture about her biography, but that is not the case today. we are externally honored and privileged to have the right honorable baroness hale.
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[applause] justice hale: thank you very much indeed for all of that interaction. very flattering, and quite undeserved. is wonderful to be here in this courtroom. to be able to talk about magna carta, yes magna carta not the magna cart. our shared heritage. both our supreme court's are surrounded by reminders of magna carta. the great doors into these buildings are a bronze belief of king john. the ninth first admitted that the visitor sees when entering your museum of national archives before going upstairs to see the declaration of independence, the
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constitution, and the bill of rights. about the doors leading into the building, which now houses the super court of the united kingdom, there is a stone relief of king john. engraved on the class door this evening, at the entrance hall, into our library, is a facsimile of the 1225 charter, with its most famous energy highlighted "to no one will be deny or delay right or justice." those words from a chapter 14 of the original charter, together with the original chapter 39 "no free man should be arrested or imprisoned, or deceived or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack them except by the lawful judgment of his peers or by the law of the land." those words still have the power to make the blood race. as the greatest judge in britain
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of this century had said. they are embodiments of the right to life, liberty, and property, not to be infringed without due process of law still to be found on the book of the united kingdom and the fifth and 14th amendments to the constitution of the u.s. my don't blood -- my own blood raced too a few weeks ago. when i received my own summons. sealed with a privy seal, giving me 40 days notice of a certain permit held in westminster. harking back, i felt short to chapter 14 of the original magna carta. "and to obtain the common council of the kingdom and aid, we call us to be summoned, the bishop, abbots,
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and greater barons, and in addition we will call to be summoned generally, through our sheriffs and bayless, all those holding chief for a fixed date, when that expires and at least 40 days and to a fixed place." this is the foundation of a second principle, which we can trace, at least as far back as magna carta, that the people for whom the taxis are levied -- taxes are levied should have a voice in what they should be. the idea of no taxation without representation. with youth -- with the exception of the district of lovecolumbia. if i recall it was that which fosters the american colonies. [laughter] i dwant therefore, to protect myself. as a member of the house of lords, i do not have a vote in
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the house of summons. i got my own summons before the election decided who those numbers were to be. the law left the house of lords to become the 16th court of the united kingdom in 2009, neither do i have the right to sit or both on any parliamentary business in the house of lords. so i am doubly disenfranchised. perhaps i should go along with the prisoners and others who don't have the vote in my country. another of my favorite provisions in the original charter is chapter 45. "we will not make justices, constables sheriff's, or bayl -- bailiffs." this is but one of the many embodiments in the charter. the third idea, the idea that the king and his officials were
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as much subject to the law of the land as were the rest of his people. the rule of law is not a one-way traffic. law, which only the government have to obey. the government have to obey it too. indeed, by chapter 60 of the original charter, the customs and liberties which the king had granted to our men, which meant my men, the barents, had also to observe their men. -- the barons. they cascaded down through the feudal ranks. these ideas, the essentials of modern constitutionalism can all be found in the original magna carta of 1215. the idea that fundamental life can only be taken away or interfered with by due process and in accordance with the law. although when i get to the end of my lecture, you will see the debate whether "and" means "and" or "and" means "all."
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the idea that consent rests upon the governed and that the government is bound by the law. no wonder lawyers get so excited by it. all three ideas begs the question of where the law comes from and who makes it. but i will come back to. historians, at least in my country, tend not to be so excited about the, but the 15th of june of 1215. -- about the magna carta. they do it was not so different from the charters of other tkings, just reaffirming principles of feudal law, and above all, its most radical provisions were soon adopt. while the story of how the baron succeeded is quite exciting. story of what happened next is even more exciting. only a few days after the charter with field, on the 15th
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of june. king john asked the pope to release him from his house to observe him. only 24th of august, the pope obliged. king john felt guilty to the pope, and the pope wrote him something in return. he denounced the charter as distorted by "such violence and fear that might affect the most courageous of men." he forbade king john to keep his oath and he declared the charter "null and void of all validity forever." he might've thought that that was that. the result of civil war between the barons who extorted the charter and the king who were loyal to him. it looked as if the barons were going to lose until they persuaded the son of the king of france, prince louis to wh bo they had already offered the crown. -- to whom they had already
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offered at the crown. the french were in a lot of trouble in my country. [laughter] we laid claim to the throne. -- louis laid claim to the throne. by election by the baron remarkable, but true. he didn't promise to abide by the charter. by october, it looked as though john was headed towards to beat when he -- towards defeat. he headed towards the wash, a large shadowed bay in the east of england. he was reinforcing his garrison at lincoln council, one of the few holding out for the king. john made it across the wash, but most of his baggage did not and sank. he stumbled into newark, died there on the 18th of october. thus as recorded in a book called "1066 and all that,"
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which is advertised to comprise all of the parts of english history "which you can r emember." [laughter] in other words it's wrong. "john finally demonstrated his incompetence by losing the crown and all his clothes in the wash." [laughter] "and then dying of peaches and no cider. thus, his awful rain came to an end." his body was can find -- confined to purchaser abby for burial. his heir, is nine euros on. henry the third --nine-year-old son, henry the third. loyal servant quickly took charge. with the support of the people -- papal legate arranged for henry's ruination in boston and
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reluctantly -- henry's coronation in boston. the book traveled to bristol which was a second city in the kingdom. i myself and please to know that because i am counselor of -- i am chancellor of bristol. in bristol, the king was advised to reintroduce magna carta. this was sealed by marshall and the cardinal, because the boy-king had no seal of his own. this the magna carta of 1216, also issued in 1217, made the basis of the magna carta of 1235. -- 1225. those are the ones that really matter. the 1216 charter was very different from the one exacted by the barons. one might call it a typical english, mice -- english
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compromise. preserving the spaces of the monarchy and rights of the people. most importantly, they didn't think the regional chapter 61, given to 25 barons to be chosen by the runnymede rebels to enforce the provisions of the charter against king and his officials. these powers acknowledged the indignation of the pope. some of the other chapters, which king john had promised to put right particular grievances were dropped because they were deemed political situations in 1215. other chapters were disguised in the 1216 charter as important, yet doubtful. isn't that a clever phrase? they were "to be deferred until
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we have a fuller counsel, when we will know other matters that have to be amended through what is for the common good and the peace in the state of ourselves and our kingdom." and among these, were the chapters dealing with the levying of aid and scootage, including my favorite chapter 14 about summoning the common council. it is the principle of no taxation without consent, coming back in other ways. it was because of the exclusion that the famous chapters 39 and 40 of the 1215 charter were combined to form after 29 of the 1216 and all subsequent charters, including the charter of 1297, which was involved on the english statute four. -- statute board. making laws that have emerged in the 17th century.
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in granting the 1297 charter, it was the first "no more then the 1235 charter than his father, henry the third." you know this because there was one of those 1297 charters in your national archives. and of course, you can read it can't you? --the writing isn't in latin. it was granted by the king "of our own spontaneous goodwill." it was not granted on the advice of his counselors, who merely witnessed it. but, "in return for the grant and gift of these liberties, the archbishops, and bishops barons, knights, freeholders and all of our realm has given us a 15th part."
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-- pay tax. no longer a product of coercion, it was never the less a contract with the people. liberty and boulevard in return for the taxes the kings needed to maintain his state and wages war. henry the third was still around in 1225 to reissue the charter largely due to william marshall, his regent, the best night in all the world. 00 k-- knight in all the world. he defended the french army at the battle of lincoln. prince louis renounced his claimant to the english throne and promised to never assist the rebels again. the rebels were pardoned. they were still excommunicate but that didn't matter quite as much. having their land restored to them. as a historian puts it, "magna
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cartel was revolutionary. the idea of monarchy with chicken to its foundation. the republican challenge was real." -- the idea of monarchy was shaken to its foundation. fast-forward to the 17th century. the century of the english revolution as a century of english colonization of america. english and i forgot about the underlying magna carta in the intervening years. magna carta was, after all, on the statute book. putting chapter nine into an effect had been developed. magna carta was first printed in a latin in 1508, in english in 1534. i believe that you have on show
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downstairs, a copy of one of the early english printings of magna carta, which is a wonderful thing to be able to see. you might also be familiar with the treaties contributed to glasgow and the courts of england. a writer in 1190, said before magna carta, what pleased the prince was forcible -- was force of law. after magna carta, he said instead, whatever has been rightly decided an approved, the council and consent of the magnates and general agreement of the community, within the authority of the king or prince, does adhere to the force of law. thinking and problem -- the king and parliament in other words. not to be subject to man but god and the law. you might also be familiar the treaty of john fortis q in the
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mid-15th century. when he said that "the king of england cannot alter the laws of the realm at his pleasure." magna carta was not on the lawyer's minds until it was resurrected and given power by sir edward coke -- sir edward cook. the three ideas that a person should not be deprived of his liberty or property, that there should be no taxation without common consent, and that there were limits to the royal prerogative were prominent in each of those battles.
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the great charter of the liberties of england was referred to as a petition of right in 1638, drafted by the house of commons which was now an elder state. presented by cook to the house of lords. reluctantly and equivocally given the role by charles the first. eventually, as everyone in my country ought to know, that i fear that the teaching of history is such that they probably don't, the king tried to roll without parliament. there was a civil war, also known as cavaliers. they were wrong, but were romantic. and the parliamentarians, also styled roundheads who were right
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and repulsive. about correct actually. the roundheads won the war. the king was put on trial for treason and executed in 1649. the adjournment of his trial was "the good words of the good old charter of england." there would not be any justice with what it meant. oliver cromwell without a great respecter of civil liberties either. famously declaring that "your magna carta cannot control actions taken for the safety of the commonwealth." whether it was an accurate quote, i cannot say. the monarchy was destroyed in 1660, but once again became
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precarious when james the second recesses his prerogative hours. -- reassesses his prerogative powers./ mary was invited to the crown on one condition. the bill of rights of 1689 and the sovereignty of the king of parliament was firmly established. the king alone could not make law or suspend the operation of the law which parliament had made. the bill of rights also prohibits excessive bail and cruel and unusual punishment. meanwhile, while all these exciting things are going on in the old countrym the englis were establishing their american countries on the other side of the atlantic. they took the common law and magna carta with them. the royal charter granted the
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colonists of the virginia in 66, which is probably the work of cook -- 1606. they would enjoy the same rights that the english possessed in the lead. some colonies created their own magna carta-like constitution, the first section of which reads remarkably like the 16th charter. william penn is credited with the first american printing of the great charter and used it in framing the laws of pennsylvania. he had first-hand experience of the battle for english liberty before he came over here to the colony. so it was that the common law of magna carta, which mandated -- motivated the declaration of
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independence 1776 and that the framing of the new constitution in 1787. you will note much better than i -- will know the much better than i that it seems obvious that the denial of their heritage as investment played the part -- as englishman played a part in independent. but the framing of the new constitution would need something more. lawyers would have known all about the writings of william cook and all sorts of william blackstone. -- sir william. the colonists had no vote in the parliament which was now sovereign and pass laws which overrode their injured rights. -- their ancient rights. when they post direct taxes upon them with no visitation, they
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invoked magna carta for independence. on the other hand, as of ported-- the framers of the constitution were looking to create a new form of government. magna carta had at least the effects from their point of view. -- three defects from their point of view. it was the work of the king rather than the people. it could be overwritten by parliament. in limited only the operation of government and not of the legislature. for the framers, it was the people, not parliament who was sovereign. and invested the constitution in its authority. they were soon persuaded it was necessary to enshrine the freedom in the bill of rights en route to protect them from the rule of the majority. much of its content in the magna carta and the petition of rights , habeas corpus and trial by
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jury. did his motivation, not so much by appeal to ancient history but by an appeal to nature and reason? from the puritan covenant, john locke's's theory of natural rights. as i say you will know the answer to that much better than i do. there is an awful lot of writing about it. having marched together for two centuries, the constitution of the u.s. and u.k. went their separate ways. we in the united kingdom had to wait until the human rights act of 1998 before we had a proper bill of rights that the citizens of the u.s. would recognize. patient at the lack of progress by the u.n. at translating
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binding obligations international law, the council of europe enshrined a similar set of political rights in the european convention on the rights of 1950. -- of human rights of 1950. protecting the liberty of a person with the most 1959 magna carta. many of the seminal cases came from the u.k. the complacency of the english lawyers embodied rights, that the english had enjoyed for centuries, was shaken. eventually are some important --
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our sovereign parliament decided they should be enforceable in the united kingdom. it is still not a proper bill of rights in the american sense or indeed the sense of many other constitutions in the modern world. the u.k. courts to not have the power to strike down a provision in an act of the u.k. parliament, which is incompatible which convention rights. all we can do is interpret the provisions so that it is not incompatible/ there is an amazing amount you can do with interpretation. [laughter] i won't get any examples now but there's a lot we can do. or it is not possible, we can make a declaration of incompatibility. parliament had three choices. first, iteratively approve a remedial approving counsel. -- it could approve a remedial
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approving counsel. second was an act of parliament providing an excessive plan to deal with compatibility. and third, do nothing and risk the loss of the council of europe. so far, all the 19 surviving declarations of incompatibility have been acted upon by the u.k. parliament. most of the time it worked. one exception is that they have not yet amended the so-called blanket ban on the sentenced prisoners voting in elections. when they do that, can they please tack on that those who cannot vote and are in the house of laws can vote? might i sugar the pill? not only that, what parliament has granted parliament can take away.
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they promised to "scrap" the human rights act and introduce a british bill of rights. this would break the formal league -- formal link between the u.k. and european council and make britain the arbiter of rights into the european kingdom. in the queens speech, the new parliament last week, the new government promised only to bring forth proposals for a british bill of rights. so we'll have to wait and see what they contain. the human rights act has given us the tools which which death's to protect against the organs of the state. it is also made us think harder about the content of fundamental right and common law. and to wonder whether we too have a concept of constitutional statute which are different ordinary ones. all of this has been taking
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place against the backdrop of the atrocities of 9/11 and later international development, which have brought new challenges to the fundamental values which we associate with magna carta. we tend to think that the american cause are far more conscious of magna carta. between 1940 and 1990, the supreme court's of the u.s. had cited in more than 60 cases. we found another 31 u.s. supreme court cases since then, including nine in the last 10 years. as far as we can discover, it has been referred to in judgment, in only 44 cases before the house of lords and the u.k. supreme court. --24 cases. six of those are in the last 10 years. does this indicate a renewed interest in the values it
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embodies? in 2003, in the court of appeals, lords held that there is a category of constitutional statute, including magna charta, but also the european communities of 1952, which cannot be entirely repealed or modified by a later ordinary act of parliament. last year, due supreme court questioned whether one constitutional statute could modify another. the case was a challenge to the government decision of the construction of a new high-speed railway between london and the english midlands. although apparently it will go to scotland, which isn't going down very well there. [laughter] they went by these powers before parliament. the art that parliamentary
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scrutiny would be inadequate to comply with the requirements that the european directive on in our mental impact -- on environmental impact assessments. until the case got to the supreme court, no one had taken the point that for us to inquire into the adequacy of the parliamentary process would be contrary to article nine of the bill of rights of 1689, which provides that "freedom of speech or debate proceeding in parliament would not be impeached or questioned in any place out of parliament." our president enjoyed judgment -- in joint augment, referred to a number of instruments including magna charta, -- magna carta, and continued. it is certainly arguable--
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this is heady stuff for those who are brought up to believe that parliament can make or unmake any law. it feels well short of constitutional entrenchment. our courts have become more vigorous in applying the rules of legality. any parliamentarian can understand what was at stake and be prepared to take the political risks in agreeing to it. fundamental rights are not be overridden by general or ambiguous words. this means that three of the
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earlier cases in which magna carta was mentioned in judgment for the house of lords might have been decided differently today. in the case during the first world war, the majority of the house of lords decided that a broad enabling powers in the defense of the realm permitted regulations to be made which authorized the internment of persons with "hostile origins or associations." another board discrete. the most -- another lord disagreed. he put scorn on the majority view.
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during the second world war, in two cases, the majority held that the secretary's power to authorize detention, where he had reasonable cause to believe that the grounds existed did not mean that he actually had to have reasonable cause, only that he had to generally think that he did. they rejected the council's argument that provisions which took away the fund mental rights to liberty and due process conferred magna carta had to be narrowly construed. interestingly, in his famous dissent, the lord did not refer to magna carta at all. he regarded it as a simple question of the meaning of words. the only authority could think of would be be the view taken of the majority. "when i use a word, it means
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just what i choose it to mean. neither more nor less. the question is whether you can make words mean so many different things. the question is home to come to -- is humpty dumpty which is to be the master after all." his reliance on magna carta had to do with the protestation of the regulations in the dustbin-- these days, while i believe we which are his view of the work himself the relaxed view taken by the majority of the house of lords for the deprivation of liberty in times of war contrasts so much with the deprivation of property.
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in both the central control board and a famous attorney general the find that requisition property-- at least since magna carta, the court had no prerogative power to confiscate property for his own benefit. these days, we would have to judge such basis not only on the fundamental principles of human law but the human rights act. the abrogation of property is possible in time support but even such interrogation has to be justified. we held that the power given to the executive shortly after the atrocities of 9/11 is the same
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to suspend foreign terrorist without trial was unjustifiably discriminatory against foreigners. we had plenty of homegrown terrorist of around who needed it too. i like to think that with or without the human rights act, we would have reached the same conclusion as the majority of your supreme court. under the human rights act, it would have been easy. the act summit -=- summons authorities wherever they are in the world. the convention rights protect anyone, alien or citizen, who was is within the jurisdiction of the u.k. those detained by british authorities anywhere in the world are undoubtedly within the uk's jurisdiction. article five of the distinction
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must be proved before an impartial trial established by law. without the humans right act, it would have been a little more comforted. but aliens her and i delete -- are indelibly entitled to habeas corpus. like a negro of africa did in 1972 and was freed. i hesitate to mention this, but our court recently held that that has -- that that test satisfied a pakistani man held iraq was transferred to u.s. authorities, in breach of the memorable -- memorandum of understanding between our two countries. we held that the could hold habeas corpus to the british
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court to get us to do something about it. the point is that habeas corpus would-- the question would be whether they had any legal right to do so. these are the sorts of cases in which magna carta is mentioned but more as a value underpinning later laws than a surviving rolloff itself. -- rule of law itself. i would like to tell you about one case we had in which magna carta might have actually made a difference. this concerns the fairytale of diego garcia. the largest diamond in the
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archipelago in the indian ocean. the islands were seated to prison by the french in 1814. -- seated to the british by the french in 1840. the bridge negotiated to make the islands available to the u.s. for this purpose, it was necessary both to sever the islands from their dependency, because they might soon become independent. who knows whether they would stay aligned with the western pirate -- western powers. by an order in council under the royal corroborative, the british government created a separate colony, known as the british indian ocean territory. in 1971, the u.s. wanted to move in, the commissioner made in immigration ordinance which
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prohibited anyone from entering or remaining on the territory without a permit. and of course no permits were given to the indigenous population. this is part of a legal fatwa constructed by the leader of the british government to deny that there was any immigrant publishing -- local population. the local population all moved out. with "a callous disregard of their interests." all of this is known and accepted by the british government. one of the islanders brought judicial review proceedings in england to squash the proceedings to legislate the peach order and government did
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not include the power to expel others in their best interests. and two dozen one, this plan exceeded. the government at the time accepted this decision. they made a new constitutional order and a new immigration order prohibiting it. they didn't mention that this was precipitated by a plan by some of the islanders and supporters two-stage landings on the island, which is seen as a security threat to the diego garcia base. so there was a second round of proceedings to crush the orders. he failed in the house of lords by majority of 3-2.
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among the many artemis -- arg uments deployed on the islanders was among chapter 29 on the magna carta. "no free man should be exiled but by the lawful judge of his peers or the law of the land." it was accepted that parliament might pass a law exiling a person from his homeland, but it was argued that an order in council -- an ordering council could not do so. three of the lords disposed of this art meant by holding that -- of this argument by holding that the orders were "the law o f the land." holding that "all" means all. other lords held that there was no prerogative power to exile a population from its mind. -- from its homeland.
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i was not a member of the panel that heard of that case. i wonder which way i would have decided it. [laughter] justice hale: i wonder which weight the u.s. supreme court of the united states would decided it. the underpinning all use of 1215 and 1255 are as important to today's world as they were then and as much indeed protection in our courts. thank you. [applause]
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>> thank you, lady hale for those spirited, illuminating, and entertaining remarks on this on the rule of law -- on this fundamental document on the rule of law. i also want to acknowledge it justice convert -- justice gi nsberg this afternoon. one of the things lady hale me ntion, we have one of the largest collection of constitutions on display out of the gift shop this afternoon which is opened by the way. you will find a 1956 printing of magna carta on the second row down on the left. it is a small book and very interesting in english wuthith latin as well. for those of you that are taking
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the tour of for those of you who are taking the tour, it will begin at 5:00 p.m.. for those of you with reservations we have a reception at 7:00 p.m. and a reception at 8:00 p.m.. thank you very much. [applause] >> you are watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on facebook. >> the battle of gettysburg in 1863 was a turning point in the


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